Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Crickitt v R [2018] NSWCCA 240 Hearing dates: 29 August 2018 Decision date: 26 October 2018 Before: Bathurst CJ R A Hulme J Davies J Decision: 1. Leave to appeal against conviction granted. 2. Appeal dismissed. Catchwords: CRIME – murder – conviction appeal – whether verdict unreasonable – whether direct evidence establishing cause of death necessary to prove that alleged cause of death in fact caused death of deceased – deceased allegedly injected by accused with dose of insulin – not fatal to prosecution that there was no direct evidence that death occurred as result of administration of insulin – well open to trial judge to infer that applicant caused death of deceased – whether trial judge erred by not directing himself regarding applicant's loss of forensic opportunity – issue for trial judge was whether elements of Crown's circumstantial case were capable of proving offence beyond reasonable doubt – no occasion for judge to give himself a warning Legislation Cited: Criminal Appeal Act 1912 (NSW) ss 5(1)(b), 6(1) Criminal Procedure Act 1986 (NSW) s 133 Evidence Act 1995 (NSW) s 38 Cases Cited: Bell v R [2017] NSWCCA 207 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mahmood v The State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 R v Crickitt (No 2) [2017] NSWSC 542 R v Crickitt [2016] NSWSC 1738 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Category: Principal judgment Parties: Brian Kenneth Crickitt (Applicant) Regina (Respondent) Representation: Counsel: Mr G Wendler (Applicant) Ms M England (Respondent) Solicitors: Streeton Lawyers Solicitor for Public Prosecutions File Number(s): 2014/356147 Decision under appeal Court or tribunal: Supreme Court Citation: [2016] NSWSC 1738 Date of Decision: 8 December 2016 Before: Hoeben CJ at CL File Number(s): 2014/356147 Judgment 1. THE COURT: Brian Kenneth Crickitt applies for leave to appeal against his conviction for the murder of his wife, Christine Crickitt, at Woodbine on or about 1 January 2010. 2. The applicant was found guilty on 8 December 2016 following a judge-alone trial before Hoeben CJ at CL: R v Crickitt [2016] NSWSC 1738. On 5 May 2017 his Honour imposed a sentence of imprisonment for 27 years with a non-parole period of 20 years and 3 months: R v Crickitt (No 2) [2017] NSWSC 542. 3. Leave is sought to appeal against conviction on the following grounds: 1 That having regard to the whole of the evidence at trial the finding by the trial judge of a verdict of "guilty" of murder was, within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW), "unreasonable or cannot be supported having regard to the evidence" and therefore the conviction for murder be set aside and a verdict of acquittal entered. 2 That his Honour erred by failing to warn or direct himself concerning the Applicant's loss of forensic opportunity when considering whether the prosecution had proved its case beyond reasonable doubt. 1. Leave to appeal is required in respect of both grounds pursuant to s 5(1)(b) of the Criminal Appeal Act as neither involves a question of law alone. Overview 1. The applicant and the deceased were married in 1991. At the time of her death the deceased was living with the applicant in a house at Woodbine, a suburb of Campbelltown. They were aged in their mid-late 50s. The applicant was a general medical practitioner and he worked at the Campbelltown Medical and Dental Centre (CMDC). There was some disharmony in the marriage. In addition, the applicant was involved in an affair with Ms Linda Livermore. 2. At some point during the night of New Year's Eve 2009 the applicant left home and went to Ms Livermore. He returned home the next morning and at 8.45am rang the emergency services number and reported, "I've just come home and found my wife on the floor. She's dead". 3. An autopsy examination was carried out but a cause of death could not be determined. A coronial inquest was held in 2011. On 3 December 2014 the applicant was arrested and charged with murder. 4. The Crown contended that the applicant caused the death of the deceased by administering an injection of insulin. The Crown Prosecutor put the case in his opening address as follows: "It's alleged by the Crown that the accused injected a lethal dose of insulin into his wife's left buttock which led to her death. If the Court accepts that the accused injected insulin into his wife, there is no doubt that it was with the intention to murder her, because she was not a diabetic, and there was no legitimate medical excuse for the accused, who was a medical general practitioner, to inject his wife with insulin." 1. The Crown Prosecutor made it clear in the course of his opening address that there was no direct evidence that the cause of death was hypoglycaemia as a result of an injection of insulin but that the Crown relied upon a body of circumstantial evidence to prove that this was so. 2. Senior Counsel for the applicant commenced his opening address by stating that "the central fact in issue in this case is the cause of death of the deceased". He explained: "The defence case takes issue with the Crown's allegation that an injection of insulin was the cause of death and, in fact, the defence case takes issue with the contention that insulin was involved in the death of the deceased at all. … Ultimately, there will be no evidence of a forensic or medical nature tending to confirm insulin overdose was the cause of death of the deceased or that insulin was involved as a contributing factor in the death of the deceased at all. At its highest, the evidence to be adduced from forensic and medical experts will merely leave open the possibility that insulin was involved." Principles applying to a ground of appeal that a verdict of guilty is unreasonable or not supported by the evidence 1. Ground 1 invokes the first limb of s 6(1) of the Criminal Appeal Act: "The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or … " 1. The principles as to how an appellate court is to consider and determine such a ground, including in the case of an appeal from a judge-alone trial, include the following propositions: 1) This Court must make its own independent assessment of the evidence, both as to its sufficiency and its quality. [1] 2) It must be borne in mind that the tribunal of fact in the court below (often a jury but in this case a judge) had the primary responsibility of determining the question of guilt or innocence and had the benefit of seeing and hearing the evidence. [2] 3) If this Court is left in doubt as to the reasonableness of the verdict, having taken into account the matter in 2 above, the verdict should be set aside. [3] 4) A verdict will be unreasonable if it is concluded that the jury must have (should have) entertained a doubt about the appellant's guilt. It is not enough that the jury might have entertained a doubt or that it is possible the jury could have reached a different conclusion. [4] 5) A finding that there was evidence on which a jury could convict does not mean that the verdict was not unreasonable. [5] 6) Where the Crown relies on circumstantial evidence, the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion. [6] 7) A judge who tries criminal proceedings without a jury may make any finding (i.e. verdict) that a jury could have made on the question of the guilt of the accused and any such finding has the same effect as a verdict of a jury. [7] 8) A judge's finding of guilt is not to be disturbed under s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the evidence was all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. [8] 9) In the case of a judge-alone trial, the appellate court should have regard to the judgment of the trial judge which, by statutory mandate, must include the principles of law applied by the judge and the findings of fact on which the judge relied. [9] The issue for determination by this Court 1. The prosecution case was an entirely circumstantial one and it had eight elements. The defence response was either to dispute them or to argue that they were of no significance. In this Court, however, the issue for determination was much more narrowly confined. It was accepted that it was open to the judge to find that the applicant had acquired and administered insulin to the deceased. The sole issue was that in a case where a particular cause of death is alleged (as here), unless there is direct evidence establishing such a cause of death the Crown will have failed to prove that an act of the accused caused the death of the deceased. The argument was expressed in the written submissions (at [177]) as follows: "Assume against the Applicant that it has been proved he obtained a supply of insulin … and surreptitiously injected the deceased with insulin intending to kill her. Unless it be proved beyond reasonable doubt the action of the insulin caused death by severe hypoglycaemia the Applicant would not be guilty of murder – this is because the act of the Applicant did not cause the death of the deceased. The act of the Applicant and the means chosen by him to effect death are not always inextricably connected. There may be a case to answer for attempted murder but not murder in the absence of evidence beyond reasonable doubt that it was insulin that caused severe hypoglycaemia extinguishing the life of the deceased." 1. The applicant's contention was perhaps expressed more clearly in oral argument; for example: [Reference was made to other cases where the cause of death could not be determined before counsel continued:] "Here [there] was a positive forensic decision made by the Crown to run the case on the basis that the deceased died of insulin poisoning, and at the end of the case the evidence did not support such a proposition." "[O]ne can't lose sight of how criminal responsibility arises in that situation that the act of the accused caused the death of the deceased. In this case, the act of the accused first and foremost was insulin poisoning and if you can't prove that, then you hit a brick wall at the point of the question, did the act of the accused cause the death of the deceased? Even if you have a significant body of circumstantial evidence which might suggest that he did certain things to bring that about but if that didn't happen, then you haven't proved the act of the accused caused the death of the deceased." "The circumstantial evidence hits a brick wall in a case where you rely on the cause of death being a particular event. You can't elevate the circumstantial evidence in such a way that you're left with effectively speculation. If you cannot prove beyond reasonable doubt what the cause of death is in a case where you run the case on a positive assertion that the cause of death is a particular event, then you have not proved that the cause of death is that particular event." 1. It was common ground at the trial that in addition to the elements of the offence of murder that the Crown was required to prove beyond reasonable doubt, there was a further indispensable fact that required proof to that standard: Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56. That was that the applicant had on the afternoon of 31 December 2009 improperly obtained a supply of insulin. The applicant accepted in this Court that the trial judge was entitled to be satisfied of this fact beyond reasonable doubt. He also accepted that there was evidence from which the judge could draw the inference that he injected his wife with insulin. As a result, the sole matter in issue in this Court was whether it was open to the judge to be satisfied beyond reasonable doubt that it was the injection of insulin that caused death. 2. It will be necessary to determine this limited (but obviously fundamental) issue by looking at the nature and strength of the Crown's circumstantial case. Given a contention in the applicant's submissions that there was evidence suggesting a lesser or no likelihood of death resulting from an insulin overdose, it will be necessary also to examine that aspect of the medical evidence. The circumstantial evidence case 1. The eight major components of the Crown's circumstantial evidence case were each the subject of findings by the trial judge. None of the findings were challenged in this Court. Motive 1. The Crown contended that there was an "emotional motive" and a "financial motive" for the applicant to murder his wife. 2. There was evidence of the applicant speaking in quite disparaging terms about his wife and being quite enamoured with Ms Linda Livermore. For example, in his first police interview, which occurred less than a few hours after his wife had died, he said of her, "she's pretty volatile. She's alienated all her friends, except for a couple. … the children, her son scarcely talks to her. His wife won't talk to her at all. [S]he argues with her mother all the time. … she's just really negative, can be very cutting … just insulting all the time." 3. By way of contrast, on the evening of 1 January 2010 in his second interview the applicant told police how his relationship with Ms Livermore had developed over the past six weeks; he had taken to visiting her at night when his wife was asleep; there was a sexual element to the relationship; and they had spoken of having a future together. 4. The trial judge agreed with the defence contention that financial gain was, at best, a minor motive. However, he was satisfied that a combination of increasing dislike for the deceased and his infatuation with Ms Livermore provided not only an "adequate motive" but the "primary motive" for the applicant to murder the deceased. Internet searches 1. At 8.32pm and 8.34pm on 30 December 2009 the applicant's computer was used to make a Google search for the words "insulin overdose" and then to access a webpage titled "Critical Care – Intentional overdose with insulin: prognostic factors and toxicokinetic / toxicodynamic profiles". There was an indication that one of the results of the "insulin overdose" search had been visited by the user earlier the same day at 1.31am. The user was identified as the applicant. The website the subject of that search result was "diabetes.emedtv.com". It contained a page with information about insulin overdoses, including that "an overdose with a short- or rapid-acting insulin is typically more dangerous than an overdose with an intermediate- or long-acting insulin". 2. The trial judge said that when one took into account the date when these searches were made, together with the evidence relating to the issuing of the NovoRapid prescription for Ms Kristina Mitchell on 31 December 2009 (see below), the internet searches fitted neatly into the Crown case. He noted that the defence did not challenge the proposition that it was the applicant who carried out the searches. 3. His Honour was satisfied that the Crown had established that the only rational explanation for these internet searches was that the applicant was seeking to obtain information to further his plan to murder his wife by an injection of insulin. Issuing of the Kristina Mitchell prescription 1. This circumstance is the indispensable fact that the Crown was required to prove beyond reasonable doubt (see above at [15]). 2. Ms Kristina Mitchell had been one of the applicant's patients for about five years. She suffered from diabetes and used two different types of insulin: the fast-acting NovoRapid FlexPen which she took during the day and the slow-acting Lantus SoloStar which she took at night. 3. Ms Mitchell attended the CMDC on 31 December 2009 and saw the applicant at 3.12pm. She was given prescriptions for Lantus SoloStar and three other medications. She had them filled at the Priceline pharmacy at Macarthur Square shopping centre later that afternoon. She identified her signature on the prescriptions in the "Patient's or agent's signature" field (Exhibit U). 4. Ms Mitchell was shown a prescription in her name also dated 31 December 2009 for NovoRapid FlexPen which other evidence established had been issued by the applicant at 5.01pm and filled at the CMDC pharmacy that evening (Exhibit V). She denied that she had signed it. It was accepted that the applicant had. Nevertheless, it was contended that there was a reasonable possibility that the prescription had been "accidentally signed and it might nonetheless have been filled and the medication provided to Mrs Mitchell". 5. The trial judge concluded (at [219] and [346]): "[T]he only rational conclusion in relation to the prescription (Exhibit V) is that the accused printed it, signed it as doctor and then some time later, presented it to the CMDC pharmacy, it being also signed by him as agent of the patient. It could only have been for a reason other than legitimately providing NovoRapid to Mrs Mitchell or any other patient. I have concluded that his reason for writing the prescription and presenting it to the pharmacy had no legitimate basis in his practice as a medical practitioner. I find that the accused acquired the NovoRapid insulin for the purpose of administering it to the deceased. … [T]he issue of whether the accused improperly obtained a supply of insulin on 31 December 2009 by means of the Kristina Mitchell NovoRapid prescription was fundamental to the Crown case. For the reasons given, I am satisfied that the Crown has established beyond reasonable doubt that the accused did obtain a supply of insulin in that way." Deactivation, reactivation and deactivation again of the insulin prescription 1. A technical expert, Mr Rainier Deang, gave evidence about the MedTech32 software in use at the CMDC. Audit recording by the software indicated that a record of the prescription of NovoRapid FlexPen in the name of the patient Kristina Mitchell was created at 5.01pm on 31 December 2009 by the applicant. The record was "inactivated" (deactivated) at the same time which Mr Deang explained had the effect of hiding the prescription from the general patient medical history. This was something that would be done if, for example, the doctor changed his/her mind and decided not to issue the prescription to the patient. The word "wrong" had been inserted as the reason for the inactivation. One minute later, the applicant had reactivated the record of the prescription and then deactivated again, this time with the reason given as "not needed". 2. Rather than the defence suggestion that the activation and deactivations were inadvertent, the trial judge considered a rational explanation for there being two deactivations was that the applicant, on reflection, thought that "wrong" was likely to give rise to questions so he replaced it with the more complete explanation, "not needed". He found that the applicant was motivated by a consciousness of guilt in wanting to conceal the creation and ultimate filling of the prescription for NovoRapid FlexPen. Reactivation of the record of the insulin prescription 1. An inquest into the death of the deceased proceeded on 16 May to 19 May 2011 and then recommenced on 5 December and concluded on 8 December 2011. In the intervening period, on 12 October 2011 a subpoena was served at the instigation of the Coroner's office on the CMDC for the production of certain records of the practice including those relating to Kristina Mitchell. 2. At the time the subpoena was served the record of the NovoRapid FlexPen prescription issued at 5.01pm on 31 December 2009 in the name of Kristina Mitchell remained deactivated and so the records that were produced to the Coroner pursuant to the subpoena did not include anything in relation to it (Exhibit AE). The applicant reactivated the record on 24 November 2011. 3. The judge concluded that at some time between 12 October and 24 November 2011 the applicant became aware that a subpoena had been served. The question of insulin being involved in the deceased's death had arisen in the coronial inquest by this time. The applicant was motivated to alter the records again so that it did not appear that he was attempting to conceal the fact that the prescription had been issued. His Honour said that this would only have been a concern to the applicant if he had deliberately sought to conceal the fact of the issuing of the prescription on 31 December 2009. This further confirmed the inference of a consciousness of guilt. Lies emanating from a consciousness of guilt 1. It was common ground that the applicant at first lied to police on 1 January 2010 about his whereabouts when he left the house during the preceding night. He spoke of having gone for a drive and sleeping in his car but he accepted in his second interview on the night of 1 January 2010 that these were lies; he had in fact gone to the home of his lover, Ms Livermore. The judge inferred that these were lies told out of a consciousness of guilt. 2. The trial judge was also satisfied that consciousness of guilt was the reason for lies told by the applicant to his new wife that were covertly recorded in October-November 2014 (Exhibits BQ-BS). He had told her that evidence of him making inquiries concerning insulin overdoses on his computer and about him having reactivated the insulin prescription on 24 November 2011 was the product of police fabrication. A possible injection site on the deceased's left buttock 1. Dr Rebecca Irvine was the forensic pathologist who carried out an autopsy on 2 January 2010. Her first report dated 6 January 2010 included that the "disease or condition directly leading to death" was "undetermined". (Professor Johan Duflou, another forensic pathologist, agreed.) She issued an amended report dated 23 February 2011 in which she added two things but did not change her opinion that the cause of death could not be determined. Under a heading "Addendum" (on p 4) she wrote: "Heavy metal analysis on a specimen of leg blood showed that all results were within normal range for blood. Subsequent review of photographs taken at the time of autopsy showed that the described contusion on the upper outer quadrant of the left buttock contains a discrete, minute mark toward the 10 o'clock position of the contusion. It is possible that this mark represents an injection site." 1. The judge reviewed in detail the evidence of Dr Irvine and Professor Duflou. It included Dr Irvine saying that at the time of the autopsy she did not "appreciate the significance of this bruise and the red mark within it, that it might be an injection site." It only occurred to her when it was drawn to her attention by two police officers in December 2010. Professor Duflou agreed: "it is possible it may be a needle puncture mark" although he agreed in cross-examination that it could be an abrasion. Dr Irvine accepted in cross-examination that she had referred at the inquest to it also possibly being "an artefact of the body being moved or post-mortem change or something which doesn't represent something of relevance". 2. The judge concluded: "I am satisfied that this part of the Crown case has been made out, i.e. that the photographs of the bruise on the left buttock of the deceased raise the possibility of there being an injection site at that location." The death of the deceased was found on autopsy to have been from undetermined causes 1. As indicated previously, Dr Irvine recorded that the direct cause of death was "Undetermined". She found no obvious external traumatic cause of death; nor did she observe any acute cause of death or significant underlying disease during an internal examination. She said in cross-examination that she had performed at least 4000 autopsies since 1995 and supervised probably as many. 2. Professor Duflou, as previously noted, agreed with Dr Irvine's opinion that the cause of death was "undetermined". 3. Professor Duflou said that as a general forensic pathologist, undetermined causes of death occur in around about 5% of cases. He added that "around about that rate you are not over-diagnosing and you are not under-diagnosing causes of death". Dr Irvine thought "it's probably close to between 2 and 5%". 4. It was uncontroversial at the trial that the cause of death was undetermined. As to whether insulin administration was the cause of death, the judge concluded: "[T]he Crown case on this issue rises no higher than the conclusion of Professor Marks that while insulin administration leading to a fatal hypoglycaemia cannot be excluded, there is no clinical evidence that it was involved in the deceased's death." Other possible causes of death 1. Related to the last of those eight elements was the fact that only two other possible causes of death were considered at the trial: suicide and positional asphyxiation. Suicide 1. Suicide was not pursued as a reasonable possibility by the defence; indeed, senior counsel for the applicant specifically disavowed it. Nevertheless it was something the Crown accepted it was required to negate beyond reasonable doubt. 2. How the deceased could have taken her life without leaving any indication of how she did so is difficult to understand. In any event, the trial judge was satisfied that "while it is possible that the deceased took her own life, it is most unlikely". That was a finding that was well open to be made upon the basis of evidence that the deceased was talking recently with family members and a friend in positive terms about future plans and activities. Positional asphyxiation 1. "Positional asphyxiation" was described by Dr Irvine as "an inability to breathe effectively, based on the position of the body itself" such as where a severely intoxicated person falls and ends up in a position where their head is tucked in tightly to their chest and their head is underneath them. 2. The body of the deceased was found by police to be lying beside the bed with the head facing down but wedged so that the right cheek was pressed against the side of the bedside chest of drawers. In her report, Dr Irvine described it as an "unusual" and "awkward position" but she did not think there appeared to be a component of positional asphyxia. In her oral evidence she said, "It's unlikely that this represents a positional asphyxia". In her evidence at the inquest she described it as "very unlikely". At the conclusion of her evidence, after being cross-examined about the possible influence of a concussion or the sedative effect of drugs that were found in the deceased's system, Dr Irvine maintained that positional asphyxiation was "very unlikely" but "possible". 3. Professor Duflou said in his report that it would "be possible, but in my view relatively unlikely for a person to have suffered positional asphyxia in that position". He immediately proceeded to write about a number of possibilities that could qualify this view. In his oral evidence he agreed that when there is positional asphyxia, petechiae in the eyes is commonly seen but they were not in this case. He agreed that petechial haemorrhages over the surface of the lungs and the heart may be seen but they were not in this case. He ultimately agreed positional asphyxiation, whilst possible, was "not the obvious cause of death that I would consider at the time". 4. Professor Olaf Drummer, a Victorian forensic pharmacologist and toxicologist (see below at [55]), said that he would not expect that the drugs in the deceased's system could potentially cause her to become so incapacitated that she would be unable to move her head in order to breathe. 5. Professor Dimitri Gerostamoulos, Chief Toxicologist and Manager – Toxicology, Victorian Institute of Forensic Medicine, provided a report of 12 May 2011 (Exhibit AR) which was solely directed to the effect of lorazepam (trade name Ativan) being found within the deceased's system. The toxicological test results indicated to him that a low dose had been administered or taken. He was unable to say anything about the relative pharmacological effect in terms of whether the deceased would have been able to move her head in order to breathe. There were unknown factors such as when the drug was consumed and how much. It was a sedative drug which would have an additive effect with other sedative drugs. Alcohol may also tend to increase the effects of a combination of the medications detected. 6. Professor Duflou was recalled for further cross-examination at the end of the trial. He was shown some photographs of the deceased's body and from the colouring of the face he said positional asphyxia was "still very much worth considering as a reasonable possibility". He was referred to one particular photograph and he said: "I must say that the body looks more – in a more confined position than I had recalled and in a situation like that, you know, it certainly, I think, reinforces my concern that this could be a death due to positional asphyxia or a wedging type death of that type." 1. The Crown Prosecutor was granted leave to question the doctor pursuant to s 38 of the Evidence Act 1995 (NSW). Professor Duflou agreed that it was very likely that the photographs he had been shown were ones he had seen before he wrote in his report that positional asphyxiation was "relatively unlikely". He was reminded of the evidence he had given six days earlier ("not the obvious cause of death that I would consider at the time") and said he was still of that view, adding "positional asphyxia would be lower down the list". 2. The trial judge said he had some reservations about the evidence of Professor Duflou given on the second occasion he was called. He had changed his position in two respects from that set out in his report and in his earlier evidence. The change was apparently triggered by being shown some photographs – but they were photographs that he had seen previously. For this reason and in respect of this issue the judge preferred the evidence of Dr Irvine. This included acceptance of Dr Irvine's analysis of the photographs that the deceased was not in a position in which her capacity to breathe had been seriously compromised. The judge concluded that positional asphyxiation was "a very unlikely cause of death but remained a possible cause". 3. That analysis by the trial judge was confined to the evidence that directly related to the issue at hand. When later in his judgment he announced the findings that he made when having regard to the circumstances as a whole (rather than individually) he said that he was satisfied beyond reasonable doubt that positional asphyxiation was not a possible cause of death. Counsel for the applicant expressly conceded at the hearing in this Court that his Honour was entitled to come to that view. Evidence as to insulin causing death 1. There was nothing at the time of the autopsy suggesting that insulin had been injected. If there had been, Dr Irvine said she might have subjected the bruise and red mark on the left buttock, which she recorded and photographed, to a biopsy for further investigation in order to determine if there was a track due to an injection. The absence of any suspicion of insulin involvement also explains why no step was taken to have a sample of blood appropriately treated so that it could be tested for insulin. This is not something that is routinely done. 2. There was evidence from a number of highly qualified experts on the subject of whether an administration of insulin may have caused the death. Professor Drummer 1. Professor Olaf Drummer was asked to review the autopsy and toxicological test results within the realm of his expertise. He provided a report dated 21 March 2011 (Exhibit AQ). 2. Professor Drummer was not troubled by any of the medications found within the deceased's system as they were within therapeutic levels. (In his oral evidence this opinion extended to another medication, lorazepam.) He said that a number of drugs are available to general medical practitioners that have the potential to be fatal and would cause rapid unconsciousness and death within a few hours. They included morphine and perhaps some opiates, muscle relaxants and insulin. He noted that morphine and muscle relaxants had been excluded but he said it would be useful for there to be testing for some of the potent opioids. He also noted that insulin testing was requested but analysis was not possible at the New South Wales Division of Analytical Laboratories. 3. Professor Drummer said that insulin when given in excess (particularly to a non-diabetic) can "rapidly" cause low to pathologically low glucose concentrations leading to coma and death. Insulin could be readily measured in serum and the demonstration of insulin in tissue around an injection site often confirms the diagnosis (of an overdose). 4. When asked to clarify his opinion concerning an overdose of insulin and the use of the word "rapidly", he spoke of a number of variables. He said that if a fast-acting insulin such as NovoRapid was given at a certain dosage level intramuscularly in the buttocks to a person who was not a diabetic, a coma could result within an hour. He agreed in cross-examination that intramuscular injection takes less time for the insulin to take effect compared to subcutaneous injection. 5. Professor Drummer said that when a person has been dead for a day or two it makes it very difficult for any laboratory to detect insulin using standard procedures, as distinct from measuring insulin levels during life. Professor Carter 1. Professor John Carter is the Clinical Professor of Medicine at the University of Sydney and is a specialist endocrinologist and diabetologist. He provided a report dated 12 December 2014 (Exhibit AS). 2. Professor Carter's report provided information as to what insulin is and its function in the human body. He described the condition of hypoglycaemia and its effects. 3. Short (or fast) acting insulin analogues such as NovoRapid commence to take effect following subcutaneous injection after 10-30 minutes and remain active for 3 to 5 hours, with peak activity at 30 minutes to 3 hours. Intramuscular injection provides for quicker absorption. The speed of absorption varies individually because of factors such as being overweight or obese. (The deceased had a BMI of 37.4 kg/sq m, well above the threshold for obesity.) 4. Professor Carter explained that an overdose of insulin on its own will not directly cause damage but the resultant low blood glucose levels may do so. He wrote: "Once the blood glucose level drops below normal, there are frequently features caused by the secretion of hormones such as adrenalin which leads to an increased pulse rate, sweats, tremor, hunger and a feeling of vagueness. As the glucose level continues to fall, the cerebral state reduces and the person can become confused and disorientated and then lose consciousness. On occasions, the glucose level can fall so quickly that the effects of lack of glucose in the brain predominate and confusion and coma develop rapidly. The lower the glucose level and the longer hypoglycaemia is present, the greater the chances of brain damage (reversible or irreversible) and subsequently death developing." 1. Professor Carter concluded his report with the opinion that "it is possible given all the circumstances of the matter that Christine Crickitt could have died from an overdose of insulin". When asked about this at the trial he said, "I cannot say one way or the other". 2. In his oral evidence, Professor Carter opined that insulin could be detected in blood taken even three days after death, although he also said that the prospects of correlating the finding with insulin levels at the time of death diminished over that period (within 24 hours very good; 24 to 48 hours not as good; 3 days, if a very low level is detected, would provide no help on the level at the time of death). Professor Marks 1. Emeritus Professor Vincent Marks, University of Surrey, Guildford, provided a report dated 29 November 2011 (Exhibit BD). He is a world-renowned expert in relation to insulin and glucose metabolism in relation to diabetes and hypoglycaemia. 2. Professor Marks concluded: "Despite the suspicious circumstances of her death there is, however, no laboratory or clinical evidence to support a diagnosis of death from hypoglycaemia due to insulin. Equally there is no evidence that excludes this possibility." 1. In the body of his report he said that while it cannot be excluded that there was an administration of insulin there was also "nothing to suggest that insulin was involved and some minimal evidence to suggest that it was not". He explained in a telephone conference, subsequently confirmed in writing by email (Exhibit BF), that the "minimal evidence" he was referring to was an account emanating from the applicant to the effect that the deceased had taken less than 6 hours to die. He said he would have expected her to stay alive for longer than that period of time after an injection of insulin. 2. As a post-script to his report he wrote: "Since this report was written a copy of a report by Professor Mario Thevis has come into my possession. He was unable using his highly sophisticated and exquisitively [sic] sensitive method for measuring insulin and its synthetic analogues to detect any of them in the haemolysed samples of blood that had been collected post-mortem but not separated into serum and cellular elements. They were apparently placed un-separated directly into the deep freeze. I agree with Professor Thevis's conclusion that his failure to find any insulin or its analogues in either of the two blood samples that he received does not conclusively establish that Mrs Crickitt was not given any of them by injection on the night/morning of her death. It must however reduce the likelihood. Had he been able to detect any insulin, especially if it had been a synthetic analogue, the situation would have been entirely different and been strong presumptive evidence of its malicious administration. Professor Thevis's findings therefore do not influence the conclusion expressed in my report that whilst insulin administration leading to fatal hypoglycaemia cannot be excluded beyond any doubt there is no evidence that it was involved in her death and is, on clinical grounds, less likely than that it was involved." 1. In his email exchange (Exhibit BF), Professor Marks said that by the final paragraph of that extract he was again referring to his understanding of the timeframe of death of the deceased and nothing more. He was asked whether now that he had been provided with additional information about the timeframe surrounding the death (the applicant came home around 8.00pm and the body was found 12 hours later), he was no longer of the view that it was less likely that insulin was involved. He said: "I feel that I have no view whether insulin was involved or not. There is no evidence to support the suggestion that it was given; there is nothing to disprove that it was given." Professor Thevis 1. A statement by a forensic scientist (Exhibit AZ) advised that blood samples from the autopsy were kept in a refrigerator at the Division of Analytical Laboratories (later, the Forensic and Analytical Science Service). The samples were stored within a temperature range of two to eight degrees with an average of four degrees. They were never frozen and thawed. 2. Two samples of blood, one preserved and one unpreserved, were flown to Germany for further testing. The police officer in charge of the case gave evidence that (contrary to the method of storage at the laboratory) they were frozen in order to transport them. 3. These samples were tested and a report was provided by Professor Mario Thevis, dated 24 October 2011. The analyses were negative for any insulin derivative. Because even human insulin was not detected, it was concluded: "[T]he samples were not suitable anymore for insulin tests due to degradation of the hormone. Consequently, it cannot be excluded that insulins were present but have degraded over time." 1. Professor Thevis' laboratory had forewarned that there was a high probability of detection if the blood sampling was within a relatively short period after death, preferably less than 12-24 hours but if there was a longer delay the chances of detecting insulins would be significantly reduced. Here there was a delay of in excess of 24 hours. 2. It was contended in the applicant's written submissions (at [185]) that, "the most cogent evidence from which an inference that insulin played no part in the death of the deceased came from Dr Thevis [who] … reported that 2 samples of the deceased blood, despite rigorous testing, was negative for the presence of any form of insulin". Clearly, this submission did not accurately portray the evidence as set out above. The judge's reasoning as to insulin causing death 1. The judge dealt with as a discrete topic the issue as to insulin administration being the cause of death. He quoted at length from the evidence of Professor Drummer, Professor Carter and Professor Marks. He referred to the Crown's submission that on the state of the evidence the position was "implacably neutral" that insulin administration leading to fatal hypoglycaemia could not be excluded but there was no evidence on clinical grounds that it was involved. 2. As to the defence case, his Honour noted a submission that no physical evidence was found to support the Crown case (no syringes or used Flex Pens were found on searching the applicant's house and bins). He recorded in considerable detail a submission that the timing of events was inconsistent with the Crown case; for example, that the evidence supported the proposition that any hypoglycaemic coma would be unlikely until the late hours of the night of 31 December 2009 and that having regard to observations of the state of the deceased's body the next day (rigor mortis, lividity) it was inconsistent with the evidence of Professor Marks and therefore unlikely that death from hypoglycaemia could have occurred so rapidly. His Honour also referred to Professor Duflou having said in a 2011 report for the coronial inquest and in his evidence that estimates of a time of death were "almost impossible" when there has not been a knowledgeable person present at the time death occurred. 3. The judge concluded that the defence submission on this issue of the timing being inconsistent with death having been caused by insulin administration was "of limited force". There was no evidence of the amount of insulin that had been injected, if that had occurred, and the amount was "of considerable importance". There was on the evidence an enormous variation in the reaction of individuals to insulin and so the experts (Professors Marks and Carter) were very careful to express their opinions in terms of generality and even then with high qualification. 4. The judge summarised: "[105] I have concluded that the defence submissions on this issue involve a significant amount of speculation and go no further than raising possibilities. There is an absence of accurate evidence which would allow proper inferences to be drawn. That having been said, the Crown case on this issue rises no higher than the conclusion of Professor Marks that while insulin administration leading to a fatal hypoglycaemia cannot be excluded, there is no clinical evidence that it was involved in the deceased's death." 1. It followed that the judge was required to determine whether the Crown had proved beyond reasonable doubt that the death of the deceased had been caused by the applicant having administered insulin solely on the basis of inference. He encapsulated his satisfaction to that standard in the following: "Conclusion [345] In my analysis of the evidence I have assessed each circumstance relied on by the Crown and set out my conclusions. Of necessity, in relation to some of these circumstances, I was obliged to consider them in isolation. I now propose to re-visit those issues having regard to the whole of the Crown's circumstantial case. [346] As I have already made clear, the issue of whether the accused improperly obtained a supply of insulin on 31 December 2009 by means of the Kristina Mitchell NovoRapid prescription was fundamental to the Crown case. For the reasons given, I am satisfied that the Crown has established beyond reasonable doubt that the accused did obtain a supply of insulin in that way. That finding has important implications for other circumstantial evidence adduced in the trial. [347] When considering whether insulin was a cause of the deceased's death, I concluded that there was no clinical evidence to that effect. That remains the effect of the medical evidence. I am now, however, satisfied beyond reasonable doubt that the deceased's death was caused by an overdose of insulin. This is largely because of my finding in respect of the acquisition of a supply of insulin by the accused on 31 December 2009. [348] When considering the "purported injection site" I concluded that the photographs of the deceased's left buttock raised the possibility of there being an injection site at that location. I am now satisfied on the whole of the evidence that photographs (Exhibits S and AL) do show an injection site and that this was where the insulin was administered by the accused. In reaching that conclusion I acknowledge that there remains a gap in the Crown case as to exactly how the insulin was administered. For the reasons already given, I have concluded that it was more likely that a subterfuge was used by the accused in order to gain the deceased's acquiescence to him administering an injection. [349] When considering the likelihood of postural asphyxiation as a cause of death, I concluded that it was very unlikely but possible. On the whole of the evidence I am now satisfied beyond reasonable doubt that positional asphyxiation was not a cause of the deceased's death. [350] Accordingly, I make the following findings beyond reasonable doubt. 1) That the accused improperly obtained a supply of insulin on 31 December 2009 otherwise than in the normal course of his work as a medical practitioner by means of the Kristina Mitchell NovoRapid prescription. 2) That on 31 December 2009 the accused administered a quantity of insulin by way of injection to the deceased. 3) That the administration of the insulin to the deceased was a deliberate act on the part of the accused and that this act caused the death of the deceased. 4) That the injection of insulin to the deceased by the accused was done with an intention to cause her death. [351] It follows that I am satisfied beyond reasonable doubt that the Crown has proved that the accused committed the offence on the indictment and I find the accused guilty of the murder of Christine Crickitt." 1. This process of reasoning was well open to the trial judge. Having regard to the findings of fact, particularly those listed in [350], it was not fatal to the prosecution that there was no direct evidence that death occurred as a result of the administration of insulin. The applicant did not refer to any authority that mandated there should have been direct evidence. In this case it was well open to the trial judge to infer from the facts that he found that the applicant deliberately and intentionally caused the death of the deceased by administering insulin to her. 2. There will be a grant of leave to appeal but Ground 1 must be rejected. Ground 2 – failure to warn or direct as to the applicant's loss of forensic opportunity 1. Section 133 of the Criminal Procedure Act provides: "133 Verdict of single Judge (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter." 1. It was therefore necessary for the judge to include in his judgment the principles of law that he applied. It was also necessary for him to take into account any warning that would normally be given to a jury. 2. After closing addresses had concluded there was an exchange between bench and bar as to the directions the judge should give to himself in the course of which senior counsel for the applicant said: "Your Honour might consider a direction concerning the absence of evidence in relation to the testing of insulin in the blood taken from the deceased. Your Honour has heard evidence that serum was obtained from the blood of the deceased, retained for a period of time and then properly destroyed in accordance with the order of the coroner. … The situation is analogous in some respects to where there is an absence of evidence from a material witness in the trial. Now, that's not a matter as a result of which any inference is to be drawn one way or another, it is a matter to be taken into account in determining whether or not the Court is satisfied beyond a reasonable doubt. We say that reasoning is applicable to the absence of evidence capable of proving the Crown's case in the circumstances of this trial". 1. Reference was made by senior counsel for the applicant to Mahmood v The State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 in support of his submission. 2. The trial judge said: "HIS HONOUR: I'll think about that, Mr Gartelmann, and if it's appropriate, I'll give myself a direction. At the moment, I'm rather equivocal about that." 1. The Crown Prosecutor opposed the giving of the direction, characterising the issue as simply "a gap in the Crown case" and agreeing with his Honour's suggestion that it was "a fact [the Crown] have got to live with". 2. The judge concluded: "Anyway, I'll look at Mahood [sic] again and make up my mind." 1. The judge did not refer to the issue, in terms of giving himself a direction, in the course of his lengthy reasons. 2. In the applicant's written submissions in this Court it was asserted that the applicant had lost a forensic opportunity because of the inadequate forensic testing of the deceased's blood for the presence of insulin. In the context of the Crown case being that the applicant had killed his wife by an overdose of insulin the judge should have warned himself that "such a finding may be unreliable" for two reasons; first, because the state of medical evidence was equivocal ("speculative") as to the involvement of insulin in the death; and secondly, because the lost forensic opportunity went directly to the question whether insulin administration caused the death. 3. Nothing more was said about Mahmood v The State of Western Australia in written or oral submissions. That may have been because reliance upon it at trial was inapt; it was concerned (in ground two – see the plurality at [20]-[29]) with whether an inference on a specific topic could be drawn where there was an absence of direct evidence and there were competing hypotheses inconsistent with the hypothesis for which the prosecution contended. The present was a purely circumstantial evidence case with a core element of there being an absence of direct evidence that the deceased did or did not die as a result of the administration of insulin. 4. Contrary to the submission of senior counsel for the applicant at trial, this was not a case in which there was an "absence of evidence capable of proving the Crown's case". Contrary to the applicant's written submissions, it was not the case that a finding that insulin administration caused the death of the deceased "may be unreliable" because it was not capable of proof by direct evidence. The issue for the trial judge was whether the elements of the Crown's circumstantial case were capable of proving the offence beyond reasonable doubt. There was no occasion for the judge to give himself a "warning". 5. Ground 2 must be rejected. Orders 1. The following orders are made: 1. Leave to appeal against conviction granted. 2. Appeal dismissed. ********** Endnotes 1. Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 at 473; M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 492-493; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14]. 2. SKA v The Queen at [13] 3. SKA v The Queen at [13]; M v The Queen at 494. 4. Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Hayne J, Gleeson CJ and Heydon J agreeing). 5. M v The Queen at 492; SKA v The Queen at [14]. 6. R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [46-[48]. 7. Criminal Procedure Act 1986 (NSW), s 133(1); Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [6], [11]. 8. Filippou v The Queen at [12]. 9. Bell v R [2017] NSWCCA 207 at [24]-[26] (Bathurst CJ, McCallum and N Adams JJ) applying Filippou v The Queen. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 October 2018